Frequently Asked Questions About Family Law:
*This information is not intended to substitute for the advice
of skilled counsel.
- DIVORCE
- ALIMONY
- CHILD CUSTODY & VISITATION
- CHILD SUPPORT
- DOMESTIC VIOLENCE
- CHILD ABUSE
- ABUSE PROTECTION ORDERS
- Who can file for divorce in Massachusetts?
In order to file for divorce in Massachusetts, either 1) the grounds for divorce must have occurred in Massachusetts and one spouse is still a resident of Massachusetts; or 2) the spouse who is filing must have been a resident of Massachusetts for one year. - Where should I file for divorce?
The divorce should be filed in the county where the parties last lived together. If neither spouse is currently in that county, then the divorce may be filed where either party lives. - Does one spouse gain an advantage over the other for filing first?
There is no fault assigned by the Court to the party who files first. In the event of a trial, however, the party who filed first will present their case (i.e., witnesses and evidence) first. The ability to go first can be an advantage at trial. - What are “grounds” for divorce?
Massachusetts is a “no-fault” state, which means that spouses may obtain a divorce without specifying grounds such as “desertion” or “cruel and abusive treatment.” Spouses may jointly file an uncontested divorce action along with a separation agreement, or one spouse may file a contested divorce action. In both types of divorce, the “ground” specified may be “an irretrievable breakdown of the marriage.” In an uncontested divorce action may also be obtained on fault grounds, which are specified by statute. G.L. c. 208, §1B. - What is a legal separation?
One spouse may file for a legal separation, or “separate support,” without beginning divorce proceedings. In an action for separate support, child custody and child and spousal support may be obtained. The residency requirement is the same as in divorce cases. Also, if the parties are living apart prior to a divorce, they are legally separated. - How is property divided in a divorce?
Massachusetts is an “equitable distribution” state. Marital property encompasses all of the property owned by either spouse, including gifts and inheritances. Although what is considered marital property is very broad, it is divided between spouses equitably, meaning according to what each deserves. Equitable division is based on many factors, set out by statute, which the Court must consider, such as the length of the marriage, each spouse’s homemaking and financial contributions to the marriage, each spouse’s occupation and ability to earn income, and the conduct of the parties during the marriage. G.L. c. 208, § 34. - How do I tell my child about the divorce?
The decisions of how and when to tell children about divorce will depend upon the individual family. However, it is important to give your children information without drawing them into the parental conflict and while affirming that both parents love them and the divorce is not their fault. Massachusetts requires all divorcing parents to participate in an approved Parenting Education Course, in which the focus is on teaching parents about the effects of divorce on children. Frequently, therapy is helpful for both adults and children in addressing feelings of anger and loss that arise during a divorce. - How long does it take to get a divorce?
Unfortunately, there is no easy answer to this question. The life-span of a divorce case will depend on the issues involved and their complexity. However, uncontested divorces can often be completed in a matter of a few months, while contested divorces may take a year or more before either a settlement or trial occurs. - Can I date while I am going through a divorce?
Once you are no longer living with your spouse, you may date. If you have children, however, you should be wary about introducing them to someone too soon after the separation. Meeting your new partner after you have separated from the children’s other parent can be very difficult for children, it may aggravate the emotional intensity of the divorce and may possibly give your spouse potential grounds to challenge your judgment as a fit parent. Use your common sense! Your children and their needs should come first before you social life. - Should I settle or go to trial?
Whether to go to trial or to settle is a decision that depends on the facts of your case and is best reached with your attorney. You should never be afraid to go to trial, which is before a judge and not a jury. However, it is important not to let anger or other emotions rule this decision.
- Is alimony available in Massachusetts?
Yes. Either spouse may receive alimony or spousal support from the other. Alimony is taxable to the receiving spouse and tax-deductible to the paying spouse.
- Who will get custody of the children?
The standard in Massachusetts for awarding either shared or sole custody is the best interests of the child. Parents can agree to a custody arrangement or, in cases where there is a dispute, submit the issue to the Court. - What types of custody are there?
Legal and physical custody. Legal custody refers to decision making ability regarding major issues that affect the child’s health and welfare. Physical custody refers to where the child lives. For either of these types of custody, parents may have shared or sole custody. - How does the Court decide the issues of custody and visitation?
Deciding issues of custody and visitation are among the most difficult tasks facing judges in the Probate and Family Court. Frequently, at the request of a party, the Court will appoint a Guardian ad Litem to conduct an investigation on issues of custody and visitation arrangements. Guardians ad Litem are professionals approved by the Court and are usually licensed social workers, psychotherapists, or attorneys. The role of the Guardian ad Litem is to conduct an investigation by interviewing the parties and the children (if they are old enough), and other collateral sources, such as pediatricians and teachers, and making a recommendation to the Court as to their view of the best interest of the child.
Judges also take into consideration evidence presented by the parties, which may be challenged by the opposing party. - What is a “normal” visitation schedule?
Many factors may affect a visitation schedule depending upon the ages and needs of the child. However, non-custodial parents frequently spend time with the children every other weekend and one or two evenings during the week. - Are there situations where visitation with the children should be supervised?
Yes. The Court may order that visitation between and parent and child be supervised by approved visitation centers. Supervised visitation may be appropriate in case where there has been domestic violence or child abuse, or where the non-custodial parents behaves inappropriately with the child in other ways, such as by manipulating the child during the divorce. - What if I am already divorced, can custody or visitation arrangements change?
If parents are amicable, they can agree to any changes in custody or visitation that best suit the family’s needs. However, one spouse can petition the Court for a modification of custody or visitation at any time following a divorce (even where there is a separation agreement) based on the legal standard of “a material change of circumstance.” - What if I or my spouse is in a different state with the children, where do I file a complaint for modification?
The federal and state legislatures have enacted laws against parental kid- napping, which include provisions for determining which state’s court will have jurisdiction when disputes over children arise. - Do gay partners have rights to custody or visitation with a non-biological child?
The Massachusetts Supreme Judicial Court has recently ruled that if the non- biological partner has acted as a “de facto” parent, that partner may petition the court for visitation. The determination of whether that person may have visitation rights with the child is based upon a factual review of the history of care-taking and involvement with the child. - Do grandparents have a right to visitation with children?
Massachusetts has a law the provides visitation rights to grandparents. In order to obtain visitation rights, a grandparent must file a petition in the Probate and Family Court where the divorce, action for separate support or paternity suit was filed.
- How is child support determined in Massachusetts?
Massachusetts has enacted Child Support Guidelines, which provide formulas for calculating child support based upon the gross incomes of the non-custodial and custodial parent, the number of children and their ages, child care costs and medical insurance costs. - How is child support taxed?
Child support is not taxable to the custodial parent who receives the support. The non-custodial parent who pays child support cannot deduct child support as an expense. - Can child support be modified?
Just as custody and visitation arrangement can be modified after a divorce, so to can child support orders. The standard of a material change of circumstances applies. - How long will child support continue?
Child support will continue until the child is legally “emancipated.” In the absence of an agreement between the parties, a child is usually emancipated at age 18, unless the child is a full-time student and principally dependent upon the custodial parent for support, in which case, support continues until the child is 23 or graduates from post-secondary school (i.e., college), whichever is first in time. A child’s residence in a dormitory or college apartment is not considered to emancipate the child. Other circumstances that would emancipate a child include marriage, or enlistment in the armed services.
- What is domestic violence?
Domestic violence is a pattern of behavior where one intimate partner or spouse exerts power and control over the other. Domestic violence can include physical violence, coercion, threats, intimidation, isolation, and emotional, sexual or economic abuse. Perpetrators of abuse may use the children to manipulate the victims: by harming the children directly; by threatening to harm or abduct the children; by using visitation as an occasion to harass or monitor victims; or by fighting protracted custody battles to punish victims. Perpetrators often invent complex rules about what victims or the children can or cannot do, and force victims to abide by these frequently changing rules. - How do I know if my partner is abusive?
Ask yourself these questions:
Does your partner: - Embarrass or demean you with bad names and put-downs?
- Look at you or act in ways that scare you?
- Control what you do, who you see or talk to, or where you go?
- Stop you from seeing or talking to friends or family?
- Act jealously, by doing things such as calling you repeatedly at work or home to check up on you, or accuse you of having an affair?
- Take your money, make you ask for money or refuse to give you money?
- Tell you that you are a bad parent or threaten to take away or hurt your children?
- Act like the abuse is no big deal, it's your fault or even deny doing it?
- Destroy your property or threaten to kill your pets?
- Intimidate you with guns, knives or other weapons?
- Force you to have sex, make you do things during sex that make you feel uncomfortable, or demand sex when you are sick, tired, or sleeping?
- Shove you, slap you or hit you?
- Force you to drop charges?
- Threaten to commit suicide?
- Threaten to kill you?
- What should I do?
Everyone must answer that question for themselves. You know your partner better than anyone else and his/her capacity for violence. Regardless of whether you decide to leave or stay, reach out to someone and tell them what is going on whether it is a shelter, your doctor, a minister, a neighbor. Remember that no one deserves to be abused or intimidated. Domestic violence is not your fault and it is not your responsibility to make your partner change his/her behavior.
- What do I do if I suspect that my child is being physically or sexually abused by the other parent?
The accusation of sexual abuse of a child is one of the most difficult issues that can arise in a divorce. The very first step that you should take if you suspect your child is being sexually abused is to contact the child’s pediatrician. If the pediatrician believes that abuse has occurred based upon her findings, she is required by law to make a report to the Department of Social Services (DSS). Doctors are “mandated reporters” of child abuse and they make what is known as a “51A report” under Massachusetts General Laws chapter 119, section 51(a). Thereafter, DSS has ten days to complete an investigation and determine whether the allegation of abuse is supported.
In the interim, your child’s pediatrician may refer you to a medical or mental health specialist with expertise in treating victims of sexual abuse. It is also very important that you obtain an attorney with experience in this field.
It is likely that DSS will request that you obtain a restraining order [see Abuse Prevention Orders above] barring contact between the child and the suspected abuser. DSS may also refer the matter to the local district attorney for criminal prosecution in district or superior court, which could occur simultaneously with your divorce or custody action in probate and family court.
The probate and family court is likely to appoint a guardian ad litem to investigate the allegation of sexual abuse so that the Court may make an informed decision when faced with deciding whether visitation should occur between the alleged abuser and the child, and if so, under what circumstances. Frequently in such situations, the Court will order that visitation be supervised.
If allegations of sexual abuse are made in bad faith, the probate and family court will have serious concerns about the ability of the accusing parent to act in the best interests of the child.
- What is an abuse prevention order?
If you or your children is being abused or threatened with abuse, you may obtain an order from the Court protecting you and your children from further abuse.
- What is “abuse?”
Abuse is defined by statute as “the occurrence of one or more of the following acts between family or household members: (a) attempting to cause or causing physical harm; (b) placing another in fear of imminent serious physical harm; (c) causing another to engage involuntarily in sexual relations by force, threat or duress.” G.L. c. 209A, § 1. - Who can get an abuse prevention order?
You may obtain an abuse prevention order if you are being harmed or threatened with harm by a family member (by blood or marriage), a household member, someone with whom you are or were in a “substantive dating relationship,” or someone with whom you have a child "Family or household members" are persons who:
- What is a “substantive dating relationship?”
To answer this question the Court looks at the following factors:
(1) the length of time of the relationship;
(2) the type of relationship;
(3) the frequency of interaction between the parties; and
(4) if the relationship has been terminated by either person, the length of time elapsed since the termination of the relationship.
Please feel free to contact Janice Bassil or Kathleen M. O’Connell for more information.
